By Marc Smith, J.D.
You, a close friend, or a family member may have experienced or may know someone who has experienced a loved one unable to make end-of-life decisions for him or herself. In most cases, the parents, spouse, children, or siblings must make those health care decisions instead all the while wondering if it’s what their loved one would want. Let’s look at a recent example in which an incapacitated individual had to rely on an unlikely agent.
Former NBA star Lamar Odom was found unconscious and fell into a coma while he was going through a pending divorce with Khloe Kardashian. Mr. Odom did not have a living will to let his family members and doctors know what his wishes were in the event he was found to be permanently incapacitated or terminally injured. Furthermore, he had not appointed an agent to make health care decisions for him while he was temporarily incapacitated in a coma. Rather, in this scenario, his soon-to-be ex-wife remained responsible for making life and death decisions because they were still married when the medical event occurred. Would you feel comfortable letting your ex-spouse making your end-of-life decisions on your behalf? How about doctors who are 50/50 on leaving you on life support because you have a terminal illness or injury? Below, we will talk about some important legal documents you’ll want to have prepared before a crisis occurs.
Advance Medical Directive (“Living Will”)
A Living Will is a legal document with written instructions that outline your medical preferences in the event that you are incapacitated. When you are terminally ill or seriously injured, in a coma, suffering for dementia, or at the end of your life, this document lets your doctors and caregivers know your choices as to whether to provide you with life-extending medical treatments, food, and other nourishment as well as pain management and other “palliative” care and hospice. A Living Will lets the people around you know what you would want ahead of time and relieves them of the burden guessing what your wishes would be if critically ill or injured or terminally incapacitated with no possibility of a cure or improvement.
Healthcare Proxy (a/k/a Health Care Power of Attorney)
A healthcare proxy is a legal document that gives you the power to appoint another person to make health-related decisions on your behalf if you are temporarily or permanently incapacitated. The person you name in this document will have the right to request or refuse treatment just as if you were making the decision and capable of communicating your wishes to a physician or other third party. Your agent cannot use the HCPOA to make any decision you would not make if you had capacity. The agent can use this document to engage with health care insurance carriers and obtain medical records whether you’re incapacitated or not.
Durable Power of Attorney (General or Special)
A durable power of attorney (DPOA) is similar to a healthcare proxy, however, this document allows you to appoint an agent, who will have the authority to perform an array of actions on your behalf, such as banking transactions, applying for public benefits and the Permanent Fund Dividend, and paying and incurring debts. Your capacity is irrelevant provided the POA is “Durable” and survives your incapacity. With a DPOA, you can appoint more than one agent to act on your behalf, together or separately, for general actions or specific events.
Once you have these ancillary documents in place, remember to review them often and update them when you experience significant life changes such as:
- Divorce or separation;
- Marriage or parenthood;
- Serious health issues or medical treatments; and
- A move to another state.
You also will need to change your designations if your agent moves, dies, or is no longer willing or able to serve.
If you have not yet put your affairs in order, maybe you are thinking, “This is important. I should do this.” The sad reality is that most won’t do anything until it’s too late making a guardianship or other legal proceeding necessary. Life gets in the way making us think “there are more pressing problems to deal with right now.” Before you know it, a family member or friend may become incapacitated, temporarily or permanently, and the family needs to make serious and critical health decisions.
Don’t wait for one of these situations to arise. Instead, grab a Post It® and write “contact estate planning attorney. Need to put my affairs in order.” Keep this message in the middle of your desk until you finish your tasks. You’ll be glad you did, and your loved ones will be grateful they are not left with the unfortunate role of making life-or-death decisions on your behalf without fully knowing your wishes.
Contact Polaris Law Group, P.C. to schedule a consultation and plan for the unexpected.